## Facts

- Pedro José Lopez-Cotto was a police officer in Lawrence, Massachusetts, with responsibilities that included referring vehicle-towing requests.
- The government alleged Lopez referred a large volume of towing requests to M & W Towing, owned by his friend Wilson Calixto.
- In exchange, Lopez allegedly received a “stream of benefits,” including discounts on abandoned vehicles and equipment.
- An FBI inquiry into a snowplow purchase revealed concealment efforts: Lopez obtained a snowplow using a $4,000 check drawn on M & W’s account and signed by Calixto.
- After FBI agents questioned Calixto, Lopez warned that receiving the plow was unethical and could lead to suspension or jail; M & W’s secretary, Mayra Colón, then helped create a false receipt suggesting Lopez reimbursed Calixto.
- At trial, the government introduced evidence that Lopez also sought personal benefits from another towing company (Valley Towing), which Lopez argued was impermissible propensity evidence.

## Issues

1. Whether the jury instructions on the 18 U.S.C. § 666(a)(1)(B) bribery count constructively amended the indictment by expanding the theory or elements beyond the grand jury’s charge.
2. Whether a special unanimity instruction concerning which benefits comprised the alleged “stream of benefits” misstated the law or misled the jury, requiring reversal.
3. Whether testimony and evidence about dealings with Valley Towing and other conduct were erroneously admitted under Federal Rules of Evidence 404(b) and 403.
4. Whether the district court inadequately instructed the jury on evaluating the credibility of immunized cooperating witnesses.

## Decision

- The First Circuit affirmed the convictions for federal program bribery, making a false statement to a federal agent, and obstruction of justice, and affirmed the sentence (18 months’ imprisonment, 36 months’ supervised release, and a $10,000 fine).
- The court held there was no constructive amendment because the instructions tracked the statute and the bribery theory charged (towing referrals exchanged for a stream of benefits) without expanding the basis for conviction.
- The court found part of the unanimity instruction erroneous but held the error harmless because the case was presented as a single bribery scheme and there was no reasonable likelihood of juror confusion or non-unanimity on the essential theory.
- The court upheld admission of the Valley Towing evidence as intrinsic to the charged conduct and, alternatively, admissible for non-propensity purposes (e.g., intent, motive, absence of mistake) with limiting instructions mitigating unfair prejudice.
- The court concluded the credibility instructions regarding cooperating witnesses were adequate because jurors were told to treat such testimony with particular care and to consider motive, bias, and expected benefits.

## Legal Principles

- A constructive amendment requires an alteration—literal or effective—that creates a substantial likelihood the defendant was convicted of an offense other than the one charged; differences in phrasing that do not expand elements or grounds for conviction are insufficient.
- In a § 666 “stream of benefits” bribery prosecution, a unanimity instruction that is unnecessary or partly incorrect may be harmless when the jury would understand it must find a single, unified corrupt exchange and the evidence and arguments consistently present one coherent scheme.
- Evidence connected to the charged conduct may be treated as intrinsic (not Rule 404(b) evidence) when it completes the narrative of the alleged scheme; even if analyzed under Rule 404(b), it may be admitted for non-propensity purposes such as intent, motive, or absence of mistake, subject to Rule 403 and limiting instructions.
- Credibility instructions for immunized or cooperating witnesses are sufficient when they direct jurors to scrutinize such testimony carefully in light of potential bias, motive, and expected benefits.

## Conclusion

The First Circuit upheld Lopez-Cotto’s public-corruption and related convictions, rejecting claims of constructive amendment and concluding that any instructional error on unanimity was harmless, the other-acts evidence was properly admitted for legitimate purposes, and the jury received adequate guidance for assessing cooperating-witness credibility.


United States v. Lopez-Cotto, 884 F.3d 1 (1st Cir. 2018)